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Sedley Alley's Last-Minute Stay:

The state of Tennessee executed Sedley Alley in the early morning of June 28 after a series of last-ditch appeals, an unusual 11th hour stay of execution, and a strongly worded order vacating the stay from a panel of the U.S. Court of Appeals for the Sixth Circuit. Given the Sixth Circuit's public dissension in recent years, including several sharply worded opinions and allegations of improprieties in death penalty cases, I suspect this case would have received more attention had it not been overshadowed by the close of the Supreme Court's term and several high-profile decisions.

Alley was convicted of the brutal rape and murder of Suzanne Collins, a 19-year-old Marine, whom he allegedly assaulted while jogging near Memphis, Tennessee. Although he initially confessed to the crime, years later he recanted his confession and claimed to be innocent. After his other appeals failed, Alley was granted a 15-day reprieve by Tennessee Governor Phil Bredesen so he could seek a court order for DNA testing of evidence from the crime scene. Alley's effort to obtain DNA testing failed, and his execution was rescheduled for June 27.

As usually occurs in death penalty cases, Alley's attorney's sought last-minute stays, but were rejected by the Sixth Circuit and the Supreme Court. Then, according to news reports, on the evening Alley was to be executed, his defense attorneys visited the home of Senior Circuit Judge Gilbert Merritt in a last ditch effort to halt Alley's impending execution.

Less than two hours before Alley was due to die, Senior Judge Merritt issued a stay of execution. The "hasty order" was "half-typed and half-handwritten" according to the Associated Press, but it did the job -- or so it seemed. Only two hours after the entry of Judge Merritt's stay, the three-judge panel responsible for hearing Alley's last appeal to the Sixth Circuit issued an order vacating the stay. The order, authored by Chief Judge Danny Boggs, had strong words for Merritt's actions, suggesting the stay by "a single circuit judge" was unseemly. Alley's claims had already been considered and rejected, so there was no basis for delaying the execution one more time. Tennessee Attorney General Paul Summers used even stronger language, calling Merritt's decision "highly irregular and in brazen violation of every rule that applies to this situation."

Not knowing a tremendous amount about the procedural aspects of habeas corpus claims and death penalty appeals, I am curious whether Judge Merritt's actions were, in fact, particularly "irregular" or unseemly. From the cases I have reviewed it did not seem that Judge Merritt was a partisan in the Sixth Circuit's prior feuds over death penalty cases. Judge Merritt has publicly expressed concerns that the public's desire for swift justice could result in the execution of innocents, and may well have been moved by the possibility that Alley was wrongly convicted. Whatever the reasons for the stay, it seems odd to me that a judge who had not been involved in the prior proceedings of this case would issue such a stay when stay requests had been repeatedly rejected by the Circuit, and stay applications to the Supreme Court were equally unavailing.

The application of the death penalty has divided the Sixth Circuit for some time, producing fiery opinions and allegations of judicial manipulation of cases to ensure given results. In one instance, a case was taken directly to en banc review, before the applicable three-judge panel could act. Cooey v. Bradshaw, 338 F.3d 615 (6th Cir. 2003). As a result, two senior judges assigned to the original panel were excluded from the case and a capital defendant's claims were accepted by the narrowest of margins. In another, dissenting judges alleged procedural irregularities in an en banc decision to stay an execution. In re Byrd, 269 F.3d 578 (6th Cir. 2001); 269 F.3d 585 (6th Cir. 2001).

Some judges on the court have intimated that their colleagues allow their personal opposition to the death penalty influence their actions on the bench. Judge Boyce Martin, for instance, has written that he does not believe the death penalty, as currently administered, can comply with due process. While he has not sought to adopt this perspective in a court holding, he regularly votes to delay or overturn capital sentences. Other judges on the court, such as Judge Boggs and Judge Alice Batchelder, are clearly unsympathetic to innovative arguments against validly imposed death sentences. Their written opinions suggest there is not a tremendous amount of trust among the Circuit's judges on these issues. [Note: Judges Martin, Boggs and Batchelder also traded allegations of impropriety concerning the Sixth Circuit's handling of the Michigan affirmative action cases.]

Given the context, and the current "disquiet" over capital punishment on the Supreme Court I found this to be an interesting case -- another example of drama on the Sixth Circuit. The information in the post comes from court opinions and published news reports (largely the AP and The Tennessean). I would appreciate additional perspective or information from readers who may be aware of relevant items I may have omitted.

UPDATE: Thanks to some of the commenters, here is a copy of Judge Merritt's order granting the stay; here is a copy of the order vacating the stay; and here is an article from the Nashville Post with some interesting details.

For those who want more legal background on the case, a search of the U.S. Court of Appeals for the Sixth Circuit's opinion database pulls up over one dozen opinions arising from Alley's conviction, including this unpublished opinion rejecting Alley's effort to obtain physical evidence for DNA testing, and this dissent from the denial en banc review concerning Alley's claim that lethal injection constitutes cruel and unusual punishment.

Former 3d Circuit Clerk (mail):
The real debate in the Sixth Circuit was over the question whether Alley purposely waited until the last minute to challenge the method of execution (because by waiting until the last minute, he hoped to delay his execution and prolong his life.) The Supreme Court ultimately said that engaging in such inequitable conduct can disqualify one from a stay of execution, and so it seems like the order vacating the stay got it right (regardless of what one thinks about the death penalty or its implementation).
7.17.2006 12:45pm
Harry Eagar (mail):
Obviously, they don't care, but this sort of tactic by anti-death penalty lawyers brings the law and their own honor into disrepute.

It's like those ridiculous long-distance Olympic bicycle races, where you circulate as slowly as you can for scores of laps, then sprint the last 50 yards.
7.17.2006 1:21pm
zzyz:
Link to opinion?
7.17.2006 1:24pm
PersonFromPorlock:

Alley's effort to obtain DNA testing failed...

How'd that happen?
7.17.2006 1:29pm
LawMan:
I am curious whether Judge Merritt's actions were, in fact, particularly "irregular" or unseemly.

As a senior judge who did not sit on the panel, Judge Merritt is flatly prohibited from issuing a stay. He had no authority whatsoever to do this. I presume that has something to do with Judge Boggs' criticism.
7.17.2006 1:31pm
Colin (mail):
Couldn't find the PDF on the Sixth Circuit's site, but the Tennessean has a (badly) scanned copy. Linked from this article.
7.17.2006 1:44pm
Legal Thoughts (mail):
From the cases I have reviewed it did not seem that Judge Merritt was a partisan in the Sixth Circuit's prior feuds over death penalty cases. Judge Merritt has publicly expressed concerns that the public's desire for swift justice could result in the execution of innocents, and may well have been moved by the possibility that Alley was wrongly convicted.

Judge Merritt was in fact a partisan in at least one of the most recent death-penalty feuds in the Sixth Circuit: the 8-7 en banc vote in House v. Bell. But curiously enough, Merritt's position in his dissent in House was rejected by all eight justices voting in the Supreme Court. Merritt had argued, and five of his colleagues agreed, that House's evidence of innocence was so overwhelming that he was entitled to immediate release. That position garnered not a single vote in the Supreme Court. The three dissenters (Roberts, Scalia, and Thomas) would have affirmed the Sixth Circuit's denial of habeas relief, whereas the five-justice majority adopted the narrower view that House had enough evidence of innocence to proceed with his habeas petition in the district court.

But the House case is just the latest example of Merritt's position in capital cases. He's been on the Sixth Circuit since the late 1970's. I'd be interested to see if any readers can point to a single case since that time in which Merritt voted to uphold a death sentence. I am not aware of any.
7.17.2006 2:39pm
Ming the Merciless Siamese Cat (mail):
For what its worth, I clerked for the Sixth Circuit when Gil Merritt was its Chief Judge. Merritt was actually considered by President Clinton for a SCOTUS vacancy but was quickly dropped due to a -- ahem -- colorful personal life.

Though left of center, Judge Merritt always struck me as a reasonable, responsible and restrained jurist.

I recall that, during my tenure at the Court, Tennessee District Court Judge John Nixon was accused of delaying issuing rulings (for 8 years in one instance) in order to effectively stay death penalty cases. Judge Merritt wrote an opinion rebuking Nixon for his actions and ordering him to rule on the matters before him. Merritt also took the unusual measure of writing a lettor to the Nashville newspaper condemning Nixon's behavior.

On the other hand, Merritt has publicly stated that he believes that the Tennessee state death penalty system is "seriously broken".

It's been a few years, but I liked Merritt and he never struck me as the type of jurist who would abuse the process to advance a political agenda.

I like the part about the order being half-hand written though. It appears Merritt STILL hasn't learned how to use a computer.
7.17.2006 2:40pm
LawMan:
he never struck me as the type of jurist who would abuse the process to advance a political agenda.

Is there any other explanation for granting a stay when he clearly had no authority to do so?
7.17.2006 2:44pm
just me:
For an odd quirk in a non-capital case, check out the en banc opinion in Popovich v. Cuyahog County, here:

http://laws.lp.findlaw.com/6th/02a0009p.html

Judge Merritt sat on the en banc court, wrote the majority opinion, and provided the one-vote margin of victory -- despite the fact that it was quite questionable whether, as a senior judge, he belonged there. Judge Gilman, a straight-shooter Clinton appointee, laid out his polite objections in an opinion titled "RONALD LEE GILMAN, Circuit Judge, concurring in the judgment, but dissenting from the composition of the en banc court."

Interesting, no?
7.17.2006 2:48pm
Court Watcher:
The Nashville Post has an article which provides a few more interesting details. It seems that Alley's attorneys personally went to Judge Merritt's home to procure the stay, even though the clerk's office for the court remained open. This is astounding. It is difficult to imagine how the defense attorneys could have even known to go to his house, in the absence of some kind of ex parte communication between Judge Merritt and the attorneys. The Post also has a scanned copy of Judge Merritt's opinion available here, which contains this bizarre handwritten statement:
The court will first conduct a hearing on Friday, July 7, 2006 to determine whether this judge should retain jurisdiction of the case or transfer the case to the District Court for the Middle District of Tennessee.

I say bizarre, because as a senior judge not sitting on the panel, it is unclear how he would have had any jurisdiction over a case not properly before him, and therefore his demanding that the circuit determine his continuing jurisdiction in a case where he lacks jurisdiction to begin with is peculiar at best.
7.17.2006 2:51pm
Ming the Merciless Siamese Cat (mail):
"Clearly had no authority"?

Its apparently not so clear to Jonathan Adler, since he asks "I am curious whether Judge Merritt's actions were, in fact, particularly "irregular" or unseemly."

And it's not so clear to me either. I guess I lack Lawman's brilliant legal mind. I actually have to read the relevant opinions, the procedural history of the case and the relevant law, precendent and rules before proclaiming on a legal issue. And even then, the correct answer often isn't answer "clear".
7.17.2006 2:56pm
byomtov (mail):
The article by Boyce Martin, linked to by Adler, is well worth reading.
7.17.2006 3:09pm
LawMan:
Fortunately for me, I am armed with more than just sarcasm. The Sixth Circuit rules are unambiguous. See 6 Cir. I.O.P. 22(d). Only active members of the court or senior judges who sat on the panel are allowed to grant a stay. Judge Merritt is neither of those. The answer is "clear."
7.17.2006 3:13pm
Bryan DB:
6 Cir. I.O.P. 22(d) does not appear to be the applicable rule.
And even if it was, there doesn't appear to be anything "unseemly" about the actions of a single judge, since they're referenced in both that rule and others.
7.17.2006 3:23pm
davod (mail):
How do you remove a senior judge. This guy appears to be flying well over the ethical bar.
7.17.2006 3:28pm
Court Watcher:
It is also apparent that the process of going to Merritt's home violated 6 Cir. R. 22(c)(5), which reads:


Emergency Motions. Counsel having emergency motions or applications, whether addressed to this Court or to an individual judge, ordinarily shall file such petitions with the clerk of the Court rather than with an individual judge.
Again, the clerk's office was open. The lawyers here went judge shopping to a judge who was senior status, was not sitting on the panel that heard the case, and who therefore had no colorable claim of jurisdiction. They did not file it with the clerk's office, because the clerk would have assigned it to the properly constituted panel—which panel ultimately removed Merritt's stay.
7.17.2006 3:48pm
Court Watcher:
Bryan DB: 6 Cir. I.O.P. 22(d) is the rule which is applied for single judge stays in death penalty cases, so I am not sure why you suggest that it would not apply. And contrary to your suggestion, Judge Merritt's actions would appear unseemly under that rule, because the rule does not permit senior judges who did not sit on the panel to issue stays, and Judge Merritt did not sit on the panel, and is therefore precluded by federal statute from sitting on any en banc court which could hear the claim.
7.17.2006 3:53pm
Christopher M (mail):
LawMan writes: The Sixth Circuit rules are unambiguous. See 6 Cir. I.O.P. 22(d).

I'm not going to defend or condemn Judge Merritt's order, because I don't know enough about what happened, but you're just flat wrong about this. "Internal Operating Procedures" are not "rules." They are not adopted as rules, and they do not have the force of law. In case there was any question about that, the Sixth Circuit helpfully clarifies: "These internal operating procedures...are not rules." 6th Cir. I.O.P 1(a).

In fact, there is a Rule that speaks to the issue of single-judge stay orders. Fed. R. App. P. 8(a)(2) (emphasis added):

A motion for [a stay] may be made to the court of appeals or to one of its judges [if it] show[s] that moving first in the district court would be impracticable....


So I think you're wrong to say that Judge Merritt "clearly had no authority" to issue the stay. Now, maybe the stay was inappropriate because it broke with the Sixth Circuit's traditional practices. Or maybe not -- I look forward to reading Judge Boggs' order. But that question has precisely nothing to do with whether or not Judge Merritt had "authority."
7.17.2006 3:58pm
Tutorial:
Bryan DB: may I suggest reading IOP 22(d) before commenting on it? You are right that the rule refers to single judges--but "active" ones, which Judge Merritt is not. Senior judges, like Merritt, may not act singly unless they served on the panel, which he did not. End of story.
7.17.2006 3:58pm
Christopher M (mail):
The lawyers here went judge shopping to a judge who was senior status, was not sitting on the panel that heard the case, and who therefore had no colorable claim of jurisdiction.

Wrong, for the reasons explained above in response to LawMan. An "Internal Operating Procedure" is not capable of creating or removing jurisdiction. And you cite 6th Cir. R. 22 about filing with the clerk rather than directly to a judge, but the rule only describes that as the "ordinar[y]" method, and is pretty obviously not jurisdictional. Not to mention that even circuit rules can be suspended for "good cause." Fed. R. App. P. 2.
7.17.2006 4:10pm
Frank Drackmann (mail):
The drugs used in lethal injection are primarily:
1: Sodium Thiopental, to induce unconsciousness, although the dose used in executions is some 15x the dose used to induce general anesthesis and would be lethal alone
2: Pancuronium bromide: A paralyzing agent but has no sedating properties, causes aprox 45 minutes of neuromuscular blockade and would also be lethal alone in the dose used
3: Potassium Chloride: Given to stop the heart,it does cause severe pain when administered through an IV line.
There are rare patients who are allergic to the first 2 drugs,in which case administration of the drug can cause rapid death through anaphylactic shock. In the rare case where a condemned prisoner was allergic to the medications, would it be more ethical to substitute a similar but tolerable medication(Propofol or Etomidate for #1, there are a host of available substitutes for #2) or continue with the regular medications, as even if the guy is allergic, the reaction will kill him. I know that you still need to wipe the skin with alcohol before starting the IV so that he doesn't get a nasty infection if the case of a last minute reprieve.
7.17.2006 4:19pm
Mark P. (mail):
Although not representing any party in the case, or working for any judge associated with it, I am familiar with a number of facts involved in this case.

1. The communications with Judge Merritt were not ex parte. Counsel for the State was notified of the application and refused to appear. One can only hope that counsel for the State was not instead spending their time in ex parte communications with members of the Sixth Circuit.

2. The allegation that President Clinton did not nominate Judge Merritt to the USSC for a supposed "colorful personal life" is libelous. Judge Merritt is an honorable man -- in his professional and personal life. Any allegation to the contrary had better be backed up by some facts -- which these aren't -- even though the poster ("Ming . . .") clearly has a positive view of Judge Merritt.

3. LawMan needs to read 28 U.S.C. 2241 &2242, FRAP 22 and the Sixth Cir. R. 22 before relying on a Sixth Circuit I.O.P. for his assertion of the law. Sections 2241 &2242 and FRAP 22 specifically contemplate making an original habeas petition to a single circuit judge. (Section 2241: "Writs of habeas corpus may be granted by . . . any circuit judge within their respective jurisdictions"; Section 2242: "If [an application for a writ of habeas corpus is] addressed to . . . a circuit judge it shall state the reasons for not making application to the district court of the district in which the applicant is held.") FRAP 22 similarly contemplates the possibility of filing a habeas petition with a single circuit judge; the Rule provides, "An application for a writ of habeas corpus must be made to the appropriate district court. IF MADE TO A CIRCUIT JUDGE, the application must be transferred to the appropriate district court." Similarly, Sixth Circuit Rule 22 provides: "Applications [for writs of habeas corpus in Death Penalty Cases] addressed . . . to any judge of this Court will ordinarily be transferred to the appropriate district court."

Furthermore, aside from the SUPERIOR sources of law on this question, once one reads Sixth Circuit I.O.P. 22(d), it is clear that LawMan is flat-out wrong about I.O.P. 22(d). I.O.P. 22(d) addresses the issue of granting a stay DURING EN BANC CONSIDERATION ONLY. The rule provides that any active judge, or any senior judge on the panel, may issue a stay "to allow the court to consider and rule on any petition for en banc review." It is simply inapplicable to the situation faced by Judge Merritt, in which a single circuit judge is faced with an original habeas petition.

4. In light of the applicable law cited above, a single circuit judge DOES have jurisdiction and CAN enter a writ of habeas corpus (and therefore a stay of execution under the All Writs Act and other statutory bases) in the circuit under the applicable statutes and rules. Judge Merritt complied with the law.

5. Judge Merritt's efforts to follow the law are reflected in the typed/hand-written aspect of his order. As is customary, counsel for the petitioner prepared a draft order with his petition. Judge Merritt, sensitive to the situation, hand-wrote LIMITATIONS on the order, to make sure that a prompt hearing would be held and promising that a written memorandum opinion would issue promptly.

5. Judge Merritt is, in my opinion, the consummate appellate judge. (I did not clerk for him, but I clerked for another Sixth Circuit Judge and have argued dozens of appeals in that Court.) On this one, he worked strictly by the book, and, in my opinion, any criticisms of him regarding this case, either by the Court or others (including the posters above), is quite misinformed. I similarly respect Judge Boggs, but this was not his finest moment. Judge Boggs' order fails to address the statutes and procedural rules that clearly gave Judge Merritt jurisdiction and authority to act as he did. I would like to attribute Judge Boggs' failure to address these procedural and substantive issues to simple haste, but, unfortunately, Judge Boggs apparently had sufficient time to draft a personal attack against Judge Merritt. If Judge Boggs had sufficient time for his attack, he had sufficient time to address the real issues involved.

6. This case is yet another example of the divide in the Sixth Circuit. The chasm on the Court is not good for the public, litigants, attorneys, the members of the Court, or the Rule of Law itself. Judge Boggs did not help things by his intemperate, premature, cursory order. I hope that Judge Merritt still takes the time to draft and publish his memorandum opinion so that law, rather than fiat, will have its say, and so that interested readers can form their own opinions. More than that, I hope that all the members of the Court will force themselves to show respect for members with whom they may disagree. A little humility -- by all involved -- will go a long way in Cincinnati.

7. My comments have nothing to do with my view on the death penalty. I support the death penalty as a policy and constitutional matter. My comments are primarily about the habeas statute and its associated procedures. They are also about the (mis)functioning of the Sixth Circuit. I fear that the political fights over the death penalty are impairing the Rule of Law, at least in the Sixth Circuit.

Markp
7.17.2006 4:39pm
Nobody (mail):
For those of us who practice law (as opposed to those of us who teach it), there is nothing unusual about entry of a typed order with handwritten changes, particularly in an exigent situation. The vast majority of formal orders issued courts in which I have practiced are drafted by the parties' counsel. Counsel presents a proposed order to the Court, which then either signs the order or, frequently, makes some handwritten changes (particularly in emergency situations like, say, an application for a TRO or a last-minute stay of execution) and then signs the hand-amended order. There's nothing remotely out of the ordinary about this.

I'm not aware of any requirement in Article III or Title 28 that says that, for an order to be effective, it must be typewritten in its entirety. While this may be extraordinary to non-lawyers at the AP, or to law professors (this isn't the kind of thing they teach you in law school), it's utterly mundane to practicing litigators.

I question whether a Circuit's internal operating procedures have force of law sufficient to strip an Article III judge (which a senior judge is) of his inherent power to grant writs of habeas corpus. But this isn't something I've studied. I vaguely remember an anecdote told by my con law professor about a District Judge who was arrested for accepting bribes and passed the time while in lock-up granting habeas orders written on the back of napkins.

In response to davod's question, I believe that the procedure from removing a senior judge is very simple two-step process: impeachment by the House of Representatives and conviction by the Senate.
7.17.2006 4:44pm
Court Watcher:
Christopher M: You make a good point about Fed. R. App. P. 2, concerning the ability of circuit rules to be suspended for "good cause." What was the good cause here? The clerk's offices was open specifically to permit last minute motions for habeas/stays in the death penalty cases pending that evening. The clerk's office makes it as easy as possible for the lawyers to file--indeed, with fax filing, it would have been faster to file with the clerk than to go to Merritt's house in person. No, the only "cause" here was judge shopping.
7.17.2006 4:56pm
Mark P. (mail):
Tutorial writes: "Senior judges, like Merritt, may not act singly unless they served on the panel, which he did not. End of story."

Not the end of the story. Tutorial does not cite to any law. I will. 28 U.S.C. sec. 2241 provides habeas jurisdiction to a single "circuit judge." It is not limited to "active circuit judges." Moreover, 28 U.S.C. sec. 43 provides that judges (like senior judges) that are designated to a circuit "shall be competent to sit as judges of the court." You can argue an amibiguity over the ability of a senior circuit judge to entertain a habeas petition under Section 2241, but "End of story" is a bit oversimplified.
7.17.2006 5:11pm
JohnO (mail):
Mark P.,

I don't read Judge Boggs's opinion as an assertion that Judge Merritt lacked jurisdiction to hear a stay request. Rather, I read it as noting that it looks unseemly (and it does to me) for a litigant to be able to just pick a judge to seek an order from when the clerk's office is (according to other posters) open at the time of the application. Whether or not Judge Merritt had jurisdiction, the decision of litigants to forgo an open clerk's office to go to the house of a single judge, with no prior involvement in the case, reeks of forum shopping and plain looks bad. I also think it looks bad for the judge to issue a stay instead of asking (1) is the clerk's office open, (2) if the clerk's office is open why are you on my front porch, and (3) if the clerk's office isn't open, why aren't you on the front porch of one of the judges who heard this case previously?
7.17.2006 5:20pm
Mark F. (mail):
Alley was convicted of the brutal rape and murder of Suzanne Collins, a 19-year-old Marine, whom he allegedly assaulted while jogging near Memphis, Tennessee

So, it wouldn't have been so bad if he had been gentle with the rape and maybe killed her with a relatively painless lethal injection like a dog?
7.17.2006 5:20pm
LawMan:
Since we're all citing 28 U.S.C., can someone show me where it allows "second and successive" habeas petitions to be filed in this manner? I haven't been able to find that section.
7.17.2006 5:25pm
SG (mail):
MarkP - how do you respond to the questions of the propriety of going to Judge Merritt's house instead of filing the request for a stay via the clerk's office as is required by 6th Cir rules? Was the clerk's office in fact open as other posters have intimated? If so, shouldn't Judge Merritt have directed defense counsel to file their motion w/ the clerk's office? What would be the good cause for circumventing circuit rules requiring filing with the clerk's office?

I too am very fond of Judge Merritt (as anyone who has spent any time w/ him in person would have to be), but I think it's at least surprising that he entertained this motion at home instead of directing the parties to the clerk's office. As you doubtless know (judging from the informed quality of your posts), Judge Merritt's actions in the Alley case have been the subject of some discussion around the Nashville bar, and my impression is that the biggest question has been why he didn't refer the lawyers to the court clerk's office. If it is true that the clerk's office was open, it certainly appears that Judge Merritt was permitting defense counsel to judge shop in a way that appears somewhat questionable.

Obviously, his actions are only questionable if a) the clerk's office was open and b) there is a 6th Cir rule requiring parties to go there first. If you question either of these premises (I have not read 6th Cir R 22c5 and am taking an earlier poster's word that it says what the poster says it does), it would be very helpful to know how you see the issues surrounding that part of these issues.

Oh, and just so it's clear, I have never represented any of the parties in this case either and have no dog in the fight other than a personal fondness for Judge Merritt and an interest in the Nashville legal scene.
7.17.2006 5:38pm
Big River:
I think JohnO said it best above. Whether or not Merritt technically had jurisdiction, the way he used his discretion in this matter looks like a poor exercise of judgment on his part. There doesn't appear to have been anything new in Alley's last-minute stay request, and even if there was the panel that had dealt with the previous dozen or so appeals was prepared to address it. I, too, think it would be a good idea for Merritt to go ahead and publish his supporting memorandum, because I'd like to hear his explanation for why he thought it appropriate to go outside the normal process in issuing this stay. I suspect, though, that the real reason is pretty simple: he disagreed with how the panel had previously ruled on these issues (or Alley's case in general), and thus preferred it not address them this time around. If that's true, whether he had the power to do it or not, I do find something unseemly in Merritt's issuing the stay.
7.17.2006 5:58pm
Court Watcher:
Mark P had some pretty harsh words for Judge Boggs in a previous post. Notably, he said:


Judge Boggs did not help things by his intemperate, premature, cursory order.


I am wondering how it is that his opinion was premature? Judge Merritt granted a stay on an issue for which relief was already denied by the Sixth Circuit panel and en banc and the US Supreme Court. And yet Merritt believed that he should allow the litigant yet another bite at the apple, disregarding the opinion of the panel, the en banc court, and the US Supreme Court. Bogg's order, which simply recognized that the litigants had made a duplicative claim for relief, was timely, not premature. Merritt's order was meritless, and the method by which he took the case shows a desperation to short-circuit the appellate process. It is also worth noting that Judge Ryan, who joined Judge Boggs in lifting Merritt's stay, is a devout Catholic who is staunchly opposed to the death penalty.

Oh, and keeping to the form of previous commenters, I was not involved in this case, and I did not clerk for Judge Boggs or, as readers may guess, for Judge Merritt.
7.17.2006 6:06pm
Tutorial:
Mark P, the case was already (still) pending before the other judges, making reference to statutes like 2241 disingenuous (2241 conferring jurisdiction to issue writs HC on various judges). IOPs are the only authority for how a court is to dispose of a case once it takes jurisdiction. Otherwise you'd have parties playing judges off of one another all the time--the Sixth is not the only divided circuit. Where would it end? Judges ordering re-argument and placing themselves on the panel to avoid a certain outcome? And what about district courts?

Even if you are correct that those IOPs are not "law," they are consistent (in this case) with FRAP 35 and 28 USC 46. And you may not be correct: Cases are littered with references to IOPs as binding rules. See, e.g., US v. Hodge, 211 F.3d 74, 78 n.5 (3d Cir. 2000) ("Although we may be persuaded by the Attorney General's excellent amicus brief, we acknowledge that we are powerless to redress this concern. Rule 9.1 of our Internal Operating Procedures does not permit one panel of this court to overrule a holding of a prior published opinion."). As this example--where only an IOP stands between wilful intra-circuit conflict--shows, ignoring IOPs can only lead to chaos.

Regardless of one's views on the death penalty, judge-shopping, Judge Merritt (or his personal life or receiving the motion at home), the panel's rebuke was proper.
7.17.2006 6:10pm
Bryan DB:
Tutorial, I did read IOP 22(d) before commenting. First, it's a procedure, not a rule. I'll even stipulate that it's a rule. It says that single judges shall not grant a stay "to allow the court to consider and rule on any petition for en banc review." Maybe you'd like to argue that this is the same as a "stay of execution," but since they're in separate provisions of the Rules, that's not a given. And since LawMan said it was "clear," this refutes at least that supposition.
7.17.2006 6:20pm
Mark P. (mail):
1. For SG: I don't know whether the clerk's office was open or not. It doesn't matter to me. Being able to file my papers in the clerk's office, on the one hand, and being able to have a judge 1) available; 2) assigned; 3) able to hear argument; and 4) make a decision, on the other hand, are very different things. ("I'm sorry. I assumed since the clerk's office was open that a judge would hear my argument and rule promptly. I was wrong. No judge apparently was available. Now you're dead." is not exactly an excuse that I'd like to make to a client.) In fact, the habeas rules, which permit a circuit justice to act singly in habeas cases, are specifically designed for cases exactly like this -- which, I assume, would have played out lawfully under Judge Merritt. I don't think that there was anything nefarious in Judge Merritt hearing the case; again, the rules seem to be written for this very situation. While we're worried about nefarious practices, however, why was the clerk's office open so late, and why was Judge Boggs the one minding the store "for death penalty cases"? The only thing worse than judge shopping by a litigant would be a judge (or two judges, as the case may be) intentionally interposing himself into a case without hearing the parties' arguments in the wee hours of the night. Additionally, it is my understanding that Judge Boggs advised Alley's counsel that they would have a certain deadline for responding to the State's "motion to vacate the stay" (aka "notice of appeal") but then issued the Court's order lifting the stay BEFORE that deadline. If my understanding is correct, that's a pretty sad thing.

2. LawMan needs to look at section 2244 if he wants to review the rules for second and successive petitions. It is my understanding that Alley made a colorable argument for a second petition (which, for the uninitiated, must by authorized by the Court of Appeals). Judge Merritt's stay order would (I assume -- Judge Merritt's a pretty good judge who knows Sections 2241, 2242, 2244, and 2254 better than me) have allowed the procedures of section 2244 to play out. Again, Judge Boggs' order did not let the statutory procedures -- established by Congress -- play out. (I will not even bore anyone still reading on the rules regarding the composition of the panel examining second or successive petitions.) Come to think of it, after reviewing his posts above, LawMan needs to review a lot of the habeas statutes and procedures. At least he's stopped making glib assertions of law and has started asking questions. As they say in AA, you first have to admit you have a problem . . .

Markp
7.17.2006 6:22pm
Mark P. (mail):
Tutorial:

1. The case presented to Judge Merritt was not pending in the Sixth Circuit. The mandate in Alley's first habeas case had already issued from the Sixth Circuit. When it issued, the Sixth Circuit was deprived of jurisdiction over Alley's case -- at least until another notice of appeal was properly filed (which, in my opinion, did not occur when the State filed it's "Motion to Vacate the Stay.") Therefore, when Alley presented his petition to Judge Merritt, it was an entirely different, second case (hence the propriety of LawMan's questions about "second or successive" habeas petitions.) Judge Merritt was involved in an interesting case regarding the termination of appellate jurisdiction in the Demjanjuk case, by the way.

2. I never said that I.O.P.'s aren't law. (HLA Hart, anyone?) I said that I.O.P. 22(d) is not APPLICABLE law, which it isn't to this situation.

Markp
7.17.2006 6:34pm
Court Watcher:
Mark P's last comment shows a stunning lack of knowledge of death penalty procedure, and maligns Judge Boggs in a completely unsupported way.

First, contrary to what Mark said, Judge Merritt was not "assigned" to the case, unless one counts self-assignment. Judge Boggs was the presiding judge of the panel to which the case was assigned, so there is nothing nefarious in his ruling on the case. And, Judge Boggs is the chief judge of the circuit, so if there were any need to poll the other judges for an en banc matter, he would likely be the one to direct the clerk to do so--you know, the in contradistinction to Judge Martin's failure to do so in a timely manner in the Grutter case.

Second, the clerk's offices are always open late on nights of executions in order to facilitate last minute habeas/stay motions. Indeed, every Supreme Court justice keeps one clerk in chambers to advise them in death penalty cases until the hour of execution. There is nothing insidious about this, and it is misleading to suffest otherwise. Because Merritt's stay could be revoked by the panel or by the U.S. Supreme Court, the clerk's office would (and did) stay open until it was clear that no further action would occur that evening. Because Merritt's stay was manifestly contrary to law, the panel, which included one of the most anti-capital punishment members of the court, revoked the stay.

You still haven't answered my question: what is the cause here. You suggest that you would have liked to argue the case before a judge that night. That's not cause. If the clerk's office said that there wasn't a judge **actually assigned to the case** available, then perhaps you would have made a case for cause. But they didn't do that, as we know, because Judge Boggs and Judge Ryan had to reverse Judge Merritt's "premature" order.
7.17.2006 6:45pm
Big River:
Mark P.

You complain simultaneously about there possibly not being a judge available to hear Alley's appeal, and that Judge Boggs was the judge "minding the store." But the very reason Boggs was minding the store was that he was on the panel, and as such was being sure to make himself available to adjudicate any last minute appeals that Alley might wish to make on the night of his execution. I would think that, given your concerns about no judge being available to hear the last minute appeal of a condemned inmate, you would find Boggs's attention to the matter laudable, rather than worthy of derision.

Of course, it's all academic, since Alley had no new claims anyway, and was merely shopping for some judge--any judge--who might buy into his previously rejected ones.
7.17.2006 6:49pm
EricRasmusen (mail) (www):
There's quite a lot of discussion of what rule applies, enough to muddy the waters. An an economist, or a citizen, maybe my perspective is helpful. Do we really want a system in which any one judge in a jurisdiction can stop the law from being enforced simply because he is against the death penalty? (I know judges never say that is the reason, but if we give the authority to a judge, we give him the power to do it for illegitimate reasons too.)

This is just one more example of why our court system lacks legitimacy, and why we have the rule of men, not the rule of law, when it comes to the death penalty.
7.17.2006 6:49pm
Nobody (mail):
Eric Rasmusen strings together a series of non-sequiturs and concludes from them that "our court system lacks legitimacy." He somehow manages to restrain himself from arguing that Jews and homosexuals are going to hell. What's his point?
7.17.2006 7:16pm
Nobody (mail):
For explanation of previous post, see:

here
7.17.2006 7:19pm
Court Watcher:
Mark P also said of Boggs, relating to the question of second or successive habeas:


Judge Boggs' order did not let the statutory procedures -- established by Congress -- play out.
Actually, he did comply with them. First, I am not aware of any claim made by Alley that would meet the requirement for second or successive petitions. He claimed that he wanted to get DNA evidence--a claim he had made before and lost. In order to be granted a second or successive habeas petition under 2244, Congress requires that the petitioner show:

1) that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by teh Supreme Court, that was previously unavailable. [Alley cannot claim any such new rule.]; or

2) that the factual predicate of the claim could not have been discovered previously through the exercise of due diligence AND that the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. [Alley cannot succeed, because there was no constitutional error.]


To the extent that it would be necessary to determine whether this constituted a second or successive habeas petition, the question must be presented to a 3-judge panel. This would be a must-panel case--again, you clerked for Judge Martin, so I presume that you are familiar with the procedure here from Grutter, and so Judge Boggs would have complied with congressionally mandated procedure in finding that this issue had been previously adjudicated. In fact, however, Boggs did not refer to it as a second or successive habeas petition, but simply vacated the stay because it was based on a claim that had already been adjudicated and rejected by the court. Granting the stay on that basis is the act which is contrary to the congressionally authorized scheme.
7.17.2006 7:46pm
Tom Wood (mail) (www):
For what it may be worth, here is a piece we ran at NashvillePost.com earlier in the evening than the one linked above.

I reached the young lawyer from the Federal PD's office (quoted here) soon after the state filed its motion opposing Merritt's ruling -- a motion that was mighty smoothly put together and swiftly produced; the state was well-prepared for any eventuality. I have to say I was impressed with the defense attorney's on-the-spot eloquence under pressure.

--Tom

State lambastes Merritt's ruling that stays Alley execution
Late-night maneuvers continue after jurist holds up scheduled lethal injection
7.17.2006 7:47pm
Mark P. (mail):
Court Watcher writes:
1. "First, contrary to what Mark said, Judge Merritt was not "assigned" to the case, unless one counts self-assignment."

Judge Merritt did not assign himself to the case. Alley's counsel sought him out. The question in this case was whether Congress, in Section 2241, provided Judge Merritt jurisdiction, as a single circuit judge (not active, but senior), to enter a stay of Alley's execution pending resolution of Alley's second habeas petition. Although many would-be judges posting above are confident that they know the answer to this question, their reasoned support for their conclusions is woeful. I have shown the statutory and procedural rules that, I believe, authorized Judge Merritt's actions -- has anyone shown, by reasoned argument, that Judge Merritt did not have authority to do what he did? I still say not -- if you think that you can show, in a reasoned argument, that Judge Merritt lacked the authority that I've argued above, I'd like to see it. Obviously, Judge Merritt may have, following expedited briefing and argument, ruled on Alley's second habeas petition. We'll never know. And we'll never know because two judges -- Judges Boggs and Ryan -- cut off the procedures laid out by Congress. I don't know who elected them to disgregard Congress' statutes and the Supreme Court's Rules, but the fact that they have been given power doesn't mean that they've exercised it legitimately (and, please, no "informative" posts about nomination by the President and confirmation by the Senate -- it's the same mechanism that gave Judge Merritt his power -- the question here is: which judges exercised their power within the bounds of the law? And so far, no one has been able to support Judge Boggs).

2. "Judge Boggs was the presiding judge of the panel to which the case was assigned, so there is nothing nefarious in his ruling on the case. And, Judge Boggs is the chief judge of the circuit, so if there were any need to poll the other judges for an en banc matter, he would likely be the one to direct the clerk to do so--you know, the in contradistinction to Judge Martin's failure to do so in a timely manner in the Grutter case."

You need to consult LawMan about second and successive habeas petitions. THEY ARE SEPARATE CASES, WITH DIFFERENT RULES. You also need to review the law and significance of the appellate mandate (hint: it cuts off appellate jurisdiction). Judge Boggs had NOT been assigned to the panel overseeing a judgment (or appealable interlocutory order) in Alley's second habeas case. Judge Boggs and Judge Ryan simply became frustrated with the procedures established by Congress, the Supreme Court, and the Sixth Circuit and cut off those procedures. The third judge on the panel (which, if the notice of appeal had been properly filed, and if Alley's second federal case were properly assigned to the original panel) wasn't even consulted. Which is too bad, because she may have said, "Look, guys, I know you're frustrated, but we really should look at the record, review the statutes and rules, and listen to the arguments before reversing Judge Merritt's decision. He's our colleague, after all, and he's been a pretty good judge over the last thirty-or-so-years, and maybe he's actually right."

My concern over "nefarious" appearances is not with the fact that the clerk's office was open, but with the fact that Judge Boggs was minding the store. Why? I simply don't know. And you don't either. But if I have to choose between the appearance of judge-shopping by a litigant and the appearance of officiousness by a judge, I'll take the appearance of judge-shopping every time. (But see, Big River, supra, "the very reason Boggs was minding the store was that he was on the [first - ed.]panel, and as such was being sure to make himself available to adjudicate any last minute appeals that Alley might wish to make on the night of his execution.")

Your en banc discussion is so far off base it's hardly worth discussing. But since this was a second case, and the appellate judges in Alley's first case could not even convene to decide whether to reconstite the panel for his second, there was not even a case to en banc. Nice try, though. Swing and a miss.

This is not the forum for an attack on Judge Martin in Grutter, by the way -- although I must add that losing sucks, doesn't it? Judge Martin's view of the issue in Grutter was completely vindicated by the Supreme Court, and Judge Boggs' was completely rejected (Come on, you remember: diversity is an educational goal sufficient to survive strict scrutiny in higher-education admissions, or something to that effect).

3. By others (in summary): "Alley had no new claims, and there was no cause to bring the petition to Judge Merritt." Factually false on the first count, not true as a matter of fact and opinion on the second count. Alley made a motion in State court to have DNA at the crime scene tested, in an asserted effort to show his innocence; the TN Supremes permitted a hearing in STATE court, but the State trial court rejected Alley's motion to have the DNA tested. THIS DNA ISSUE WAS NOT RAISED IN ALLEY'S INITIAL FEDERAL HABEAS PETITION. Alley was going through the appellate process from that (second) State post-conviction proceeding when his execution date was pending; to preserve his federal rights, he had to make a single-judge application for a stay. While I am confident that he had a lot of substantive and procedural hurdles, and while I don't know the exact status of his State DNA proceedings and his execution date (as I recall, it was a matter of a few days), on the basic issue of whether Judge Merritt had jurisdiction and authority to grant the stay, I believe that Judge Merritt had that jurisdiction and authority. If you disagree, I'd love to hear a good argument, instead of conclusory opinion. But it's a matter of fact, not opinion, that Alley raised new issues in his second habeas petition.

By the way, we haven't even talked about actual innocence, the interplay of 2241 and 2254, suspension of the writ of habeas corpus, due process, and host of other issues that may have come up if Judge Boggs and Judge Ryan hadn't cut the process off, which is a shame.

Markp
7.17.2006 8:07pm
Court Watcher:
Mark P.:

Your attempt to pretend that this is a wholly unrelated case shows your lack of knowledge of procedure. In addition to the "must panel" rules, which require any new motion in a case where a panel has already heard a motion/argument to be forwarded to the original panel to determine whether it is in the interest of judicial economy for them to hear the case, there is the unique fact that this is a death penalty case, and that as such a panel is designated to hear all claims which may arise in the case. Thus, your claim that these are DIFFERENT CASES WITH DIFFERENT RULES is plainly and procedurally wrong and irrelevant. Do you think that this is the first time that a litigant has filed a last minute hail Mary? No. Contrary to your suggestions that there was something unseemly about Boggs being available, all the judges on a death penalty panel are on call the night of an execution. The fact that you don't know that death penalty judges are on call is quite remarkable for a former clerk . . . . but then from the article cited by Adler, we know where Martin stands on the death penalty.

As for your red herring about the interaction of 2241 and 2254 and suspension of the writ, all of those issues have been decided by the Sixth Circuit and the Supreme Court. See, e.g., Greene v. Tennessee Dept. of Corrections, 265 F.3d 369 (6th Cir. 2001) (second and successive limitations of 2244 apply to 2241 petitions); see alsoFelker v. Turpin, 518 U.S. 651 (1996) (restrictions on second and successive habeas petitions in AEDPA does not constitute suspension of the writ). Did you have any other frivolous arguments that you wanted to make?

Oh, and the fact that the Supreme Court agreed with Martin on the merits in Grutter doesn't go to my comment, which had to do with his manipulation of the panel and en banc courts to reach his desired result. Perhaps its Martin's actions that have led to your distrust of judges?
7.17.2006 8:28pm
KeithK (mail):
The fact that we're arguing about all of the minute procedural details here demonstrate the absurdity of the current capital punishment regime. Alley was convicted of a crime that was committed in 1985. Twenty one years ago. Can anyone seriously believe that there truly was new information or new arguments that only came to light within hours of his execution. It's possible, but the likelihood is mind-numbingly low particularly in the case of a defendant who had confessed and maintained an insanity defense for 19 years. No, his lawyers were simply trying every trick in the book to keep their client alive for a little while longer and they found a willing judge.
7.17.2006 8:39pm
Christopher M (mail):
To the extent that it would be necessary to determine whether this constituted a second or successive habeas petition, the question must be presented to a 3-judge panel.

I'm not an expert on the Sixth Circuit's habeas jurisprudence, but that isn't what AEDPA actually says. The provision requiring authorization by a three-judge panel to file a second or successive petition applies, by its terms, only to habeas petitions filed in district court:
Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application[, which motion] shall be determined by a three-judge panel of the court of appeals.
28 U.S.C. s 2244(b)(3)(A)-(B) (emphasis added). But Alley didn't file in the district court; he applied directly to a circuit judge, who had the power to grant the writ under s 2241, and the explicit power to stay the state proceedings under s 2251. Of course the substantive barriers to a second/successive petition still applied, but not the statutory requirement that a three-judge panel authorize the petition.
7.17.2006 9:30pm
Former 3d Circuit Clerk (mail):
I posted the first comment to this post, and (notwithstanding my substantial agreement with Mark P. about the procedural irregularities surrounding the Sixth Circuit's order vacating Judge Merritt's stay), I repeat its substance here:

Alley intentionally waited until the last minute to raise various claims, NOT because they were meritorious, but because he wanted to postpone his execution by any means possible. It is understandable that someone condemned to die would resort to any and all means to survive, but that doesn't mean that Courts must tolerate abusive litigation conduct. The Sixth Circuit said it best twelve years ago:

counsel for a death-sentenced criminal never wishes to file a habeas corpus petition unless that is the last-ditch way to avoid an actual execution, when the prisoner is more concerned with avoiding execution than with receiving a final adjudication of his claims. . . . Therefore, it is almost always in the interest of a death-sentenced prisoner to delay filing that petition as long as possible.


Steffen v. Tate, 39 F.3d 622, 625 (6th Cir. 1994).
7.17.2006 10:03pm
Court Watcher:
It seems worth mentioning one last feature: contrary to the claims that Boggs short-circuited the process, he completed it. Boggs and Ryan (who, it is worth noting again, is strongly opposed to the death penalty), had been assigned to this case since its first appeal to the Sixth Circuit. They had seen every filing made by Alley. They were familiar with the arguments made to Merritt--more so than Merritt was, given that he was approached at the 11th hour by the litigants in the case. When Merritt stayed the case for the consideration of the second or successive habeas petition, they were the proper panel to hear the motion. But because the 2241 motion simply raised claims already raised before the panel, they were REQUIRED by 2244(b)(1) (which applies to 2241 petitions by binding circuit precedent) to dismiss the petition. Mark suggests that the judges should have given complete deference to a judge who did not sit on the panel, and who asserted himself at the 11th hour. Perhaps Judge Merritt should have given deference to the judgment of the judges who had already heard the very claims that were raised, and should have respected Congress's requirement that any attempt to raise such a second or successive claim be rejected.
7.17.2006 10:04pm
Anderson (mail) (www):
The fact that we're arguing about all of the minute procedural details here demonstrate the absurdity of the current capital punishment regime. Alley was convicted of a crime that was committed in 1985.

FWIW, here's my "solution": create a Court of Capital Appeals, to which all appeals of state capital convictions must go, including habeas actions (ineffective assistance etc.). Appeal by cert to the SCOTUS. A (minimum) uniform DP standard nationwide.
7.17.2006 11:20pm
Christopher M (mail):
FWIW, here's my "solution": create a Court of Capital Appeals, to which all appeals of state capital convictions must go, including habeas actions (ineffective assistance etc.).

Apart from the dangers inherent to specialized courts in general, I can't see much of an argument for giving capital defendants fewer opportunities to challenge their convictions than non-capital defendants get.
7.18.2006 12:00am
pireader (mail):
The state of Tennessee wanted to (and ultimately did) execute this man, while holding onto DNA evidence that he claimed would prove him innocent.

The state refused to make it available for DNA testing; and the courts upheld that refusal, apparently on the ground that he had no post-conviction right to it. Of course, such DNA testing was not available back when he was convicted.

Can we keep our eye on the big picture here? A legal system that suppresses compelling evidence about (possible) actual innocence in a capital case has a lot wrong with it.

If this guy was guilty, it's easy to see why he was executed; and few would miss him. But if he was innocent ...

You'd think a libertarian blog would care more about the abuse of state power than about a tiff amongst the judiacary.
7.18.2006 12:18am
BoyceMartin (mail):
Mark P,

You're a moron. I never should have hired you. Please do not make it known that I hired you, as I would prefer you embarrass a judge that everyone can already agree is a hack, such as Martha Daughtrey or Karen Nelson Moore. I can still walk into a room without triggering a chorus of snickering and laughing behind my back (or at least I like to think so).

Thanks,

"Honorable" Boyce F. Martin Jr.
7.18.2006 12:22am
SeaLawyer:
Alley was convicted of the brutal rape and murder of Suzanne Collins, a 19-year-old Marine, whom he allegedly assaulted while jogging near Memphis, Tennessee

So, it wouldn't have been so bad if he had been gentle with the rape and maybe killed her with a relatively painless lethal injection like a dog?



Tell me which one you would rather have happen to you?
Although both deserve death.

On another note lack of DNA doesn't always mean innocent.
7.18.2006 12:23am
Merrittista:
Can someone explain to me how the hell either Boggs or Siler seem to end up on every freakin 6th Circuit death case?

And Legal thoughts as to your question, yes Merritt has voted to uphold several death sentences, starting with the 6th Circuit's first dp execution, McQueen v. Scroggy (albeit in McQueen he simply voted not to rehear the matter en banc) although it is fair to call him skeptical of the failure of the death penalty scheme.
7.18.2006 12:53am
David M. Nieporent (www):
Can I ask a substantive question about the case, not about the DNA part but about the method of execution part?

Zillions of people have surgery every year, do they not? I know I've been put under before. They don't all suffer excruciating pain, do they? I know I did not. Are

(a) all of these claims about lethal injection totally bogus attempts by the anti-death penalty movement to throw up every roadblock possible, no matter how frivolous; or
(b) all the states completely incompetent? Why would they have trouble executing someone by lethal injection without causing pain to him?
7.18.2006 4:35am
Legal Thoughts (mail):
Merrittista:

Please provide citations or case names of the cases in which Judge Merritt has voted to uphold a death sentence. My quick search has not revealed any.

As to the decision in McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996), Merritt of course was not on that panel, as you recognize. My understanding is that the voting in the en banc process is not public record, but if you have a way to verify that Merritt actually voted to deny rehearing en banc in McQueen, please provide that source as well.
7.18.2006 9:38am
jgshapiro (mail):
Apart from the dangers inherent to specialized courts in general, I can't see much of an argument for giving capital defendants fewer opportunities to challenge their convictions than non-capital defendants get

A specialized court does not give the defendant fewer opportunities to appeal. They have the same opportunities as any other defendant. Patent litigants do not have fewer opportunities to appeal than non-patent defendants because their appeals must be heard by the Federal Circuit.

A specialized court would just ensure that appeals are heard before specialists, who know the procedures and the law, and are presumably less likely to manipulate them than someone who sees a death penalty case only once every year or two.
7.18.2006 10:08am
Former 3d Circuit Clerk (mail):
Here's the e-mail address of the idiot who pretended to be Boyce Martin writing a derisive note to Mark P.:

gotya56@hotmail.com

Please feel free to write to "Judge Martin" and tell him (her) how smart it is to impersonate a federal judge on a web blog.....
7.18.2006 10:15am
Orestes:
Merrittista,

I suspect that one of the reasons it seems like Boggs and Siler are on every death penalty case is that when any two of Martin, Merritt, Clay, Cole, Moore, and Daughtrey are on one, the case never reaches the point at which anyone pays attention, because the writ gets granted as soon as the case is first appealed.
7.18.2006 10:59am
Orestes:
MarkP,

Despite all the back and forth over thorny issues like jurisdiction and the internal procedural rules of the Sixth Circuit, you have not yet presented (in my mind) a competent defense of Merritt's decision to grant the stay. You say Alley had a new actual innocence claim based on DNA testing that had been denied by the TN state courts, and that he was merely pursuing his federal rights on that basis. But the Sixth Circuit--in fact, the very panel that Alley sidestepped in his last-minute petition to Judge Merritt--had already ruled six weeks before that Alley had no federal constitutional right to the DNA testing he was seeking (http://www.ca6.uscourts.gov/opinions.pdf/06a0345n-06.pdf), which decision had been upheld through the en banc and Supreme Court cert petition processes. Judge Merritt cannot himself overrule those other authorities. So, on what substantive basis could he have justifiably granted the stay? Where was the likelihood of success on the merits? What about the fact that it was a last-minute claim that, as previous posters have noted, could have been brought sooner?
7.18.2006 11:25am
Former 3d Circuit Clerk (mail):
To put this entire discussion into proper context, I reprint here the first paragraph of the Procedural History section of the Sixth Circuit opinion linked to in Orestes' post just above. (I have highlighted portions that make Alley's last-minute attempt to use the litigation process to prolong his life, not to mention Judge Merritt's issuance of a stay of execution, even more unseemly):

Alley seeks access to test for DNA evidence, at his own cost, a stick found inside the victim's body, the victim's underwear found at the scene, another set of purportedly men's underwear also found at the scene, the victim's shorts, bra, shirt, shoes, and a sock. These items were introduced as evidence at his trial. He claims to expect to identify "semen, urine, skin cells, or other biological samples from the perpetrator . . . ." (Appellant's Brief, 12) Alley confessed to most features of the brutal attack on 19 year-old Marine Suzanne Marie Collins only hours after it occurred, and he walked law enforcement authorities through the crime scene shortly after his arrest. He never asserted his innocence either at trial or until very lately in the nineteen years since his conviction. See, e.g., State v. Alley, 776 S.W.2d 506, 508-10 (Tenn. 1989). However, he now requests access to physical evidence as part of a last-minute claim of actual innocence.

7.18.2006 12:24pm
6th Circuit Capital Habeas Practitioner:
Someone asked about whether Judge Merritt has ever voted to deny habeas relief in a capital case. I believe there are only two such cases. Coleman v. Mitchell, 244 F.3d 533 (6th Cir. 2001); and Lott v. Coyle, 261 F.3d 594 (6th Cir. 2001), but see In re Lott, 366 F.3d 431 (6th Cir. 2004) (authorizing a successor habeas petition to relitigate a claim rejected by the panel in the first habeas appeal).
7.18.2006 12:45pm
Anderson (mail) (www):
Alley confessed to most features of the brutal attack on 19 year-old Marine Suzanne Marie Collins only hours after it occurred, and he walked law enforcement authorities through the crime scene shortly after his arrest.

I'm blissfully ignorant of the details of this case, but false confessions happen all the time, and I would have to put a good bit of faith in the police to assume that the "walk-through" wasn't the teensiest bit guided.

Where DNA testing is available before you kill a man, damn, do the freakin' test. (Recall that recent Va. case where the guy insisted he was innocent, the DNA test said not, and he was executed?)

As for my Court of Capital Appeals, exchanging the sheer quantity of appeals for a full, fair hearing seems reasonable to me. People are sitting on death row for 10, 15, 20 years. It's crazy.

(OTOH, they do get to wait for 5-4 SCOTUS decisions finding the death penalty unconstitutional for crimes with "R" in them.)
7.18.2006 1:09pm
Former 3d Circuit Clerk (mail):
I'm blissfully ignorant of the details of this case, but false confessions happen all the time, and I would have to put a good bit of faith in the police to assume that the "walk-through" wasn't the teensiest bit guided.

I'm sure false confessions DO happen, but normally people don't wait until the last minute to suddenly claim that they falsely confessed (let alone that they're innocent)
-- unless, of course, they are waiting until the last minute precisely becasue they think that this is a sure-fire way to postpone their execution.

This is clearly what Alley and his lawyers thought, and the federal courts here properly ruled that you cannot intentionally delay raising a claim in order to create an exigency necessiating federal court intervention into state proceedings in the form of a stay of execution. A petitioner who seeks equitable relief must act equitably. Alley didn't.
7.18.2006 1:34pm
pireader (mail):
Former 3rd Circuit Clerk --

Your reply to Anderson at 12:34 pm didn't address the main point he made (which is also the main point that I made upthread).

We're both mainly concerned about the State of Tennnesee's despicable behavior. It seems obvious to both of us that when a condemned man claims that a DNA test would exonerate him, you do the test. Instead, the state stonewalled him successfully.

Why does it matter when the guy raised his request for the test -- it would have to be post-conviction in any event, since the test didn't exist when he was tried. And why does it matter what his motives were?

What matters is whether he was innocent. And of course, stopping this kind of appalling abuse of state power.
7.18.2006 4:12pm
Former 3d Circuit Clerk (mail):
Abuse of state power? Please! Alley was a confessed murderer whose conviction was affirmed on direct appeal, after state post-conviction remedies, and after federal habeas review. You seem not to understand (or are intentionally ignoring the fact) that, at that juncture, the state no longer needs to prove its right to execute him, as the judgment is presumed to be correct. On the contrary, it was Alley's obligation, as the plaintiff in a civil habeas proceeding, to demonstrate his entitlement to relief. While it would have been preferable for the state to afford him the test (as occurred in Virginia), I'm perfectly comfortable with an execution premised upon 99.0% -- as opposed to 100% -- certainty that the defendant was, in fact, guilty.

I'm a defense attorney, and I oppose capital punishment as a policy matter. But I oppose even more strongly those anti-death penalty activists who believe that, when the death penalty's on the table, any litigation conduct designed to avoid or postpone execution is acceptable (no matter how abusive that conduct is). When federal courts intervene in final state court judgments, important federalism principles are infringed. That's why it takes more than a last-minute claim that "hey, this might prove that 20-plus years of litigation were wrong" to buy you a stay of execution.
7.18.2006 4:55pm
Nobody (mail):
F3CC:
You're a wacko. I do corporate defense, not criminal defense, but if the state wanted to murder my client, innocent or not, I would do anything and everything to stop that. When the chance exists that he's actually innocent, I would do even more.

"I'm perfectly comfortable with an execution premised upon 99.0% -- as opposed to 100% -- certainty that the defendant was, in fact, guilty."

As I said, a wacko. Shouldn't we be absolutely sure before we murder someone? How can we do less?
7.18.2006 5:12pm
Former 3d Circuit Clerk (mail):
Nobody,

You're arguments and your temperament prove that you have chosen a peferct screen name.

If the Constitution demands only 99% certainty (assuming we can quantify the reasonable doubt burden), the mere chance of achieving 100% certainty does not give rise to a colorable claim for federal habeas relief (which, you might recall, only allows review of federal or constitutional claims).

You are converting your personal moral/policy views (i.e., death penalty requires 100% certitude) into a constitutional/legal position. Once you can divorce the two, and stop resorting to cowardly namecalling, we can have a meaningful discussion on the merits of both (i.e., policy and law).
7.18.2006 5:31pm
Nobody (mail):
I wasn't making a legal argument; I was making a moral one. One who would put an adult human being to death without first doing a simple, quick, and inexpensive test that might confirm or refute guilt, out of a sense of obligation to the vague prescriptions of "federalism" or "colorable claims for federal habeas relief" is immoral.
7.18.2006 6:08pm
LawyerWatcher (mail):
I'm a lawyer, and I do post conviction work in capital cases. I don't know how anyone can say whether Judge Merritt was presented with a colorable claim for habeas relief without knowing what was in the pleadings brought to his home. Does anyone have a copy he or she could post?
7.18.2006 6:16pm
Kovarsky (mail):
I haven't commented in ages on here, but people are proceeding on pretty profound misunderstandings of the way postconviction litigation typically works.

in many instances, the sixth amendment right to effective assistance of counsel does not extend to state postconviction procedure. the fact that a prisoner might have waited 20 years to present a claim of exculpatory evidence often has as much to do with his failure to have such adequate assistance as it does with any strategic timing. as offender's executions draw closer, the likelihood of involvement on the part of non-profit groups grows. in many instances, when you see an 11th hour appeal, it is not because an offender has strategically withheld a claim, but because it is the first time he's had a good lawyer look at his claim.

that isn't to say that the law shouldn't apply, that offenders shouldn't be subject to the rules governing procedural default or successive petitions (as is the case here), but it is to say that it's fairly difficult to ascertain whether an offender fits into one of the specified exceptions to those bars (i.e. a miscarriage of justice in the successive petition provision) simply by reciting how long that offender has been on the row.

the constitution doesn't demand certainty, but it imposes a set of statutory, common law, and constitutional rules and restrictions, the lack of adherence to which is often improperly inferred from the "time" it has taken an offender to assert a claim.
7.18.2006 6:17pm
Kovarsky (mail):
People are proceeding on quite profound misunderstandings of the way postconviction litigation typically works.

in many instances, the sixth amendment right to effective assistance of counsel does not extend to state postconviction procedure. the fact that a prisoner might have waited 20 years to present a claim of exculpatory evidence often has as much to do with his failure to have such adequate assistance as it does with any strategic timing. as offender's executions draw closer, the likelihood of involvement on the part of non-profit groups grows. in many instances, when you see an 11th hour appeal, it is not because an offender has strategically withheld a claim, but because it is the first time he's had a good lawyer look at his claim.

that isn't to say that the law shouldn't apply, that offenders shouldn't be subject to the rules governing procedural default or successive petitions (as is the case here), but it is to say that it's fairly difficult to ascertain whether an offender fits into one of the specified exceptions to those bars (i.e. a miscarriage of justice in the successive petition provision) simply by reciting how long that offender has been on the row.

the constitution doesn't demand certainty, but it imposes a set of statutory, common law, and constitutional rules and restrictions, the lack of adherence to which is often improperly inferred from the "time" it has taken an offender to assert a claim.
7.18.2006 6:17pm
AEDPA:
Nobody: The Constitution doesn't demand perfection, nor do any statutes. The reason for this is because once you start following your "moral" argument, you open the door for defendants to continually pull stunts like this. Following your "moral" argument, a defendant could raise one claim of post-conviction relief, litigate that out for 10 years, then ignore statutory requirements by raising another argument for post-conviction relief (that wouldn't satsify second and successive habeas petition requirement) and the courts would be forced to entertain such a claim, and so on and so forth, over and over. Why does this work? Because your "morals" indicate that we have to be 100% sure, so who cares if the defendant didn't properly litigate and follow procedures, we would have to listen to all of these arguments to make "sure." The line in the sand must be drawn somewhere, and that is what the statutory limitations on habeas petitions has provided us with.
7.18.2006 6:19pm
Kovarsky (mail):
AEPDA,

(1) It does not "ignore" statutory requirements to raise new arguments in successive petitions. There are specific conditions set forth for when an offender may do that. For example, an offender might default a mental retardation claim, but justifiably assert it as a ground for a successive petition because it would be a miscarriage of justice to execute someone that would be entitled to Atkins relief.

(2) Just as it doesn't follow from the "moral" argument that we don't have to be 100% right, it doesn't follow from the fact that we can't be 100% right that we've drawn the line in the correct place. I suspect that it is difficult to defend the "line" congress has drawn without subscribing to the view that offenders are not entitled to attorneys in postconviction proceedings, an idea that strikes me as quite strange.

The concept of limited habeas indeed accepts some indeterminacy, but recognizing that isn't the tough part. The tough part is trying to figure out how much indeterminacy is acceptably present in the case of a state imposed execution.
7.18.2006 6:26pm
AEDPA:
Kovarsky:

As to your #1, I was giving a hypothetical situation in response to "nobody's" moral argument. In my hypothetical, as I attempted (though apparently failed) to express, the statutory requirements were NOT met. Nonetheless, under Nobody's reasoning, it wouldn't matter, because we would still have to be 100% correct.

As to your #2, I wasn't arguing that we have drawn the line correctly, and Nobody (who I was responding to) didn't try to argue that either. Instead, Nobody was arguing that we should always be 100% sure, and I was merely refuting this statement.
7.18.2006 6:36pm
Former 3d Circuit Clerk (mail):
Nobody admits that he was making a moral argument. But he still hasn't recognized that he is (probably intentionally) confusing my LEGAL argument (courts don't have to be 100% sure) with my moral position (which, as I made clear, opposes the death penalty).

Nobody, how DARE you label my position as immmoral when you lack a basic understanding of the difference between morality and law.
7.18.2006 6:40pm
Nobody (mail):
What Kovarsky said.

Also, AEDPA, it's curious that you distance yourself from the term "moral," by putting it in quotes, when the morality of which I'm speaking limited to "not killing people who may be innocent when their guilt or innocence can be determined by a simple blood test."

I don't know on what basis you consider "not killing people who may be innocent when their guilt or innocence can be determined by a simple blood test" to be a stunt, but I'm curious as to what brand of morality you subscribe to that you would not distance yourself from through the use of quotes. What does "morality" mean to AEDPA?
7.18.2006 6:40pm
Nobody (mail):
F3CC:
I "DARE" to do a lot of things.
7.18.2006 6:42pm
Kovarsky (mail):
AEDPA,

As to my #2, I recognize and acknowledge that we cannot be 100% sure, in any case. There is residual epistemic uncertainty because a court cannot ever be sure what REALLY "happened" and there is residual legal uncertainty because of the quintissentially positivist concept that the law is what courts say it is. In short, the moral acceptance of execution is a moral acceptance of uncertainty.

That being said, 99% was an unfortunate "number." Simply and uncontroversially put, habeas relief is not only about actual innocence of the underlying crime; it is also concerned with the adequacy of procedures for adjudicating it and, on those bases, imposing a sentence. In other words, saying that someone is "99% guilty" is not the same as saying that they are "99% not entitled to habeas relief." And that proposition is all the more important in light of the fact that offenders do not have rights to adequate assistance of counsel in collateral proceedings. Even making the erroneous assumption that "99% guilty" is the same as "99% not entitled to habeas relief," we incorrectly infer the 99% figure to begin with on the faulty grounds that claims have been defaulted under the limitations - or other procedural bars. Whether they have or have not been defaulted is certainly a statutory question - but the underlying moral question of the responsibility for that default is muddied considerably by the unavailability of lawyers for postconviction litigation.
7.18.2006 6:49pm
AEDPA:
Nobody:

1.) You did not so limit your "moral" criticism to those instances that can be determined by simple DNA tests. Your first post said: "Shouldn't we be absolutely sure before we murder someone? How can we do less?"

2.) Even taking your "limited" use of morals, DNA tests aren't 100% accurate, especially depending on what the actual DNA is. So, I guess what I'm getting at is, even your "limited" use of morals, to the situation where 100% certainty can be determined because "guilt or innocence can be determined by a simple blood test" is not satisfied here. Thus, you characterizing another poster as an "immoral" "wacko" is far from reasonable.

Kovarsky:

You still aren't getting it. I was simply responding to Nobody who admitted he was making a moral argument, and who asserted that executing someone if you aren't "100% sure" of their guilt is immoral. That's it. That's all I was responding to.
7.18.2006 7:07pm
Mark P. (mail):
The snide attacks on Judges Martin, Moore, and Daughtrey show the true colors of some of the posters above. "An ad hominem attack is the surest sign of a weak argument." As for the personal attacks on me, they are sophomoric. Worse, they aren't even funny. I admit that my little gig about the outcome in Grutter -- following an attack on Judge Martin out of left field -- was sophomoric; whether it was funny or not is up to the readers. Regardless, this discussion would be more enlightening if supporters of Judge Boggs' decision could simply address the statutory and procedural issues involved.

Court Watcher, in particular, avoids citations to the applicable statutes and rules. Again, I will. I.O.P. 34(b)(4) specifically provides, "[A]n independent roster of active judges . . . will be maintained for the exclusive purpose of making panel assignments in death penalty cases as soon as the case is docketed. The panel will be assigned the case and its related motions." I.O.P. 34(b)(2) provides, "In appeals brought to this Court after an earlier appeal has returned a case to the district court for further proceedings, the original panel will determine whether the second appeal should be submitted to it for decision, or assigned to a panel at random." By its terms, I.O.P. 34(b)(2) does not apply to the case presented to Judge Merritt, because the petition presented to Judge Merritt was not "a case returned to a district court after an earlier appeal." I.O.P. 34(b)(4) similarly does not address a case such as this, where a second habeas petition is filed with a circuit judge. The rule speaks to a "case being docketed" and says that the panel assigned to that case will rule on that case "and its related motions." The rule is silent regarding motions filed in a second of two separate appeals.

I've supported Judge Merritt's statutory and procedural authority above. (I have not addressed the substance of the arguments presented to him because I am not familiar with the substantive arguments made and, more importantly, Judge Merritt did not rule on them. His actions imposed a stay of execution so that a hearing on the issues in the case could be heard. Judge Boggs' decision prevented such a hearing and decision.) If you are going to support Judge Boggs' decision, however, you must argue: 1) that a "Motion to Vacate Stay of Execution" is a Notice of Appeal for purposes of FRAP 4; 2) that the panel assigned to the State's interlocutory appeal of Alley's second federal habeas case was properly constituted; 3) that it was proper for the "panel" assigned to Alley's second federal habeas case to act without apparently even speaking with the third judge assigned to the panel; and 4) that the "panel" consisting of Judges Boggs and Ryan (i) properly examined the arguments of counsel and carefully examined the factual and legal basis for Judge Merritt's authority and actions and (ii) rejected them after careful and proper consideration. Good luck.

As for the personal attacks, keep them coming. They only demean the writers. Authors of ad hominem attacks, libelous attacks, and personal attacks on the reputations of federal judges should at least have the guts to sign their own names. As for me, I have reviewed my posts, and I do not believe that any of my criticisms of Judges Boggs and Ryan are personal in nature. I have criticized the procedures that they followed, and I have criticized their treatment of Judge Merritt and the proceeding brought before him. In fact, I began by noting my respect for Judge Boggs, although I do not believe that this was his finest hour. I hope and expect that my criticisms and my language are clearly distinct from the libelous and asinine attacks on Judges Merritt, Martin, Moore, and Daughtrey above.

Mark Pickrell
Nashville, TN
7.18.2006 7:44pm
Steve P. (mail):
Good to see you back, Kovarsky.
7.18.2006 8:31pm
Orestes:
Mark P.,

I don't know enough about the Sixth Circuit's rules and the labyrinthine habeas statute to challenge your arguments on those grounds, but I do disagree with your apparent position that Judge Merritt can just stay a state's carrying out the judgments of its courts without putting forth a reason under the law. To my knowledge, the normal factors for granting a stay would still apply, including, most prominently, the likelihood of success on the merits. If Alley's actual innocence claims were in fact predicated upon a federal right to DNA testing to which the Sixth Circuit had already determined him not entitled, then how can Merritt justify granting the stay under the law? At the very least, he should have addressed this in his order. He's been a federal judge for roughly three decades, so I'm sure he has the relevant test memorized and could have scribbled at least a few sentences justifying his significant interference in the affairs of a state. On the surface, though, there appears little basis for his granting the stay. I hope he publishes his intended opinion so that we can better make that judgment, though.
7.18.2006 8:49pm
Former 3d Circuit Clerk (mail):
Nobody,

You dare do a lot of things, but you lack the courage to attach a valid e-mail address to your screen name, opting for "noneofyer@beezwacks.com" instead. It says a lot about you.
7.18.2006 9:21pm
pireader (mail):
To Former 3d Circuit Clerk (writing at 3:55 pm) --

Saying that "the state no longer needs to prove its right to execute him". is just another way of saying that the prosecution had discretion here. And used it to deny the condemned man the DNA evidence that might (or might not) exonerate him.

It's simply despicable for the Tennessee legislature to leave that discretion to the prosecution, especially in a capital case. And even more despicable for a prosecutor to use it. Those are the abuses of state power that I referred to above.

You denounce the condemned man's lawyers for bad motives. Turn it around. Can you identify any plausible motive, rooted in a sense of duty to the public interest, for a prosecutor to deny access to such potentially exonerating evidence? Me neither.

I take this bad (albeit legal) behavior by the prosecution quite seriously; and I'm perplexed that others don't. Especially libertarians, who are usually quite sensitive to abusive state policies and practices (even if legal).
7.18.2006 9:33pm
Former 3d Circuit Clerk (mail):
I would like to clarify some confusion that has arisen over my resort to terms like "99% certainty of guilt." I was not addressing whether a factually guilty defendant was convicted using procedures that violate the Constitution (a classic grounds for habeas relief, assuming the error was non-harmless under Brecht). Rather, I was addressing one situation only: where a capital inmate who confessed to the crime and never proclaimed his innocence claims on federal habeas, at the eleventh hour, that a DNA test is necessary to determine whether his prior admissions were accurate. What I was trying to make clear is that, ONLY if the Constitution requires 100% certainty before execution could such a claim be cognizable. I agree with those who argue, as a policy matter, that 100% certainty is preferable (and even "more moral"), but what we think is good policy does not automatically tanslate into a cognizable claim on federal habeas (and certainly not one justifying the entry of an 11th-hour stay). If our concepts of what was moral always guided what was legal, our justice system would routinely produce outcomes dictated by the judge's personal policy preferences rather than by what a dispassionate application of the law required.

I have this question for Mark, whose analysis and ideas I respect: do the 6th Circuit IOPs require death-row inmates who are filing original habeas petitions to bring those claims before the specially constituted death penalty panel? If so, did Alley's lawyers circumvent that rule by going straight to Judge Merritt? Because if they did, then the only question I have is whether it was the special panel or, instead, the entire en banc court that should have decided whether to vacate the stay.
7.18.2006 9:40pm
Deer Park:
Mark P:

I am trying to understand how you think this situation should have been handled. It seems to me that your method of handling it, taken to the hypothetical extreme, could result in a defendant being able to avoid execution indefinitely. Hypothetically speaking, the defendant could seek out a judge, have him issue a stay similar to that of Merritt's, and then he would be entitled to a hearing on the matter. Once he lost that hearing, he could again seek out that judge who is completely opposed to the death penalty, and again seek a similar bare bones order with no legal basis to it. This process could conceivably repeat itself over and over.

When, if ever, could such a practice be prevented by the other judges on the Circuit? Again, this is an admittedly extreme hypothetical, but how would you handle this?
7.18.2006 9:51pm
Former 3d Circuit Clerk (mail):
In response to Pireader, who asked Can you identify any plausible motive, rooted in a sense of duty to the public interest, for a prosecutor to deny access to such potentially exonerating evidence?

Sure I can. Suppose a factually guilty defendant demands a DNA test in a rape/murder case hoping (praying) that the victim had consensual sex with someone before she was brutally attacked. The inmate will use the results of that test to argue either (a) that the test exonerates him, or (b) entitles him to a new trial at which he can point the finger at this (unknown) third party.

So, I can easily understand why a prosecutor who already expended enormous resources securing a conviction and defending it on appeal and through multiple levels of state and federal post-conviction attacks would resist a DNA test whose only real goal is to game the system and stave off execution. I know you won't agree with this, but I'm simply offering one plausible answer to your question.

As to your attack on my statement that the state no longer needs to prove its right to execute a defendant whose convictions have survived direct appeal and collateral attack, I was not making a policy pronouncement, I was simply reciting a legal truism.

I try to make myself clear here, especially by differentiating between my legal arguments and my policy preferences. The fact that many here refuse to recognize that there is such a difference bespeaks a larger problem with the way we view the role of courts and judges when it comes to contentious issues. People derided Judge Bork's "Tempting of America" book because of its lack of serious scholarship. But the posts here show that he was onto something: "DNA tests are good; the Constitution, therefore, must afford a capital inmate right to DNA testing."
7.18.2006 10:05pm
pireader (mail):
Former 3d Circuit Clerk --

Thanks for a thoughtful and courteous reply. I appreciate your good-faith effort; but, as you suspected, it doesn't convince me. Let's see if I can explain why.

First off, I'm not disputing anything you've said about what the law actually is today. Am only saying that it's appallingly bad public policy, which prosecutors can exploit to serve their own ends rather than justice.

Specifically, I suggested that prosecutors have bad motives for denying potentially-exonerating evidence to a condemned man. Your hypothetical example described what presumably seemed like good motives to you ... but frankly, they sound bad to me.

Your prosecutor fears that if the DNA evidence turns out well for the condemned, then the courts will overturn his conviction and force a new trial. And that would entail a lot of work and expense for the prosecution. Better to stonewall and let the guy go to execution.

Hmmm, sounds ugly. If it were a movie, we'd know who to boo for. And it's pretty much the kind of bad [but not illegal] motive I originally had in mind.

Now to be fair, your hypothetical also supposes that the prosecutor somehow really knows that the DNA evidence is irrelevant -- both that the guy's guilty and that he would be convicted on re-trial. So suppressing that evidence is just skipping a few useless steps on the way to the death-house. But somehow, the courts in this hypothetical just can't or won't recognize the irrelevance of the new information; so best make sure it never comes to light.

Hmmmm ... that doesn't sound so good either. It reminds one of the old definition of a fanatic -- Someone sure that God would agree if only He had all the facts. Not what we'd want in a prosecutor.

You see my problem here.

It's unlikely that we'll resolve this. Just wanted to explain why I remain unconvinced.

PS -- Perhaps my real problem is an idealistic residue of childhood exposure to that British dictum that "the crown never loses a case". I just expect better from our prosecutors.
7.19.2006 12:04am
Mark P. (mail):
To Former 3CC and Deer Park: Thanks for your thoughtful posts. As I read the AEDPA, I think that Alley had to seek permission to file a "second or successive" habeas petition from the Sixth Circuit. (Under the Rules, a habeas petition brought to a circuit judge must be docketed in the district court or eventually transferred there -- therfore giving rise, I believe, to the requirement of CoA sanction.) Therefore, as a matter of pure procedure, I do not believe that Alley legally could receive (or would have received) a habeas writ from Judge Merritt. I also think, however, that Judge Merritt did have jurisdiction and authority under 2241, and that he had the authority to grant a temporary stay of execution under the All Writs Act and other statutory bases so that the procedural issues raised by Alley's petition could be fairly argued and decided.

So what should have happened? I don't know the substance of the claim for a stay, but I personally believe that Judge Merritt would grant a stay only after serious consideration of the arguments presented to him -- his handwritten limitations on the stay order showed that he was sensitive to the competing interests involved in this rare procedure. I also believe that, had Judges Boggs and Ryan not intervened, Judge Merritt would have likely lifted the stay after briefing and argument (on procedural grounds, if not substantive grounds), all within five days or so.

Obviously, Deer Parks' comments reflect the very realy concern that "wily" death-penalty lawyers and judges with an ideological ax to grind can perpetually forestall executions. I don't think that that's a real concern. I'm not a big fan of slippery slope arguments in the law, particularly in procedural cases -- just follow the constitution, statutes, and Rules laid out by the framers, Congress, and SCOTUS, and we should be alright. In the end, the procedures we have are the creation of Congress -- they could hasten executions simply by depriving the lower federal courts and judges of all habeas jurisidiction in State death-penalty cases. Congress has not chosen to amend Section 2241, including its "circuit judge" language. Until Congress chooses to amend the jurisdictional statutes, I believe that we all (including all federal judges) have the obligation of trying to follow the procedures established in the statutes and Rules.

As for the proceedings at the Court of Appeals: I think that Judges Boggs and Ryan should have informed the State that it needed to file a notice of appeal (instead of deeming the "Motion to Vacate Stay" as a notice of appeal). Because the mandate had issued in Alley's prior Sixth Circuit appeal, the Sixth Circuit did not have jurisdiction until the filing of a notice of appeal. Cf. Sixth Cir. I.O.P. 41(a)("The mandate is the document by which this Court relinquishes jurisdiction . . . ."); FRAP 4. [All of the vociferous posters above who have attacked my knowledge of the applicable statutes and rules truly need to re-read I.O.P. 41(a) and ask themselves, "Did the Sixth Circuit issue a mandate in Alley's prior appeal?" If the answer to this question is "yes," then the Sixth Circuit was devoid of jurisdiction until the filing of a subsequent, proper notice of appeal.] Once the State filed a Notice of Appeal (which it did not do in Alley's second habeas case), the appeal should have been docketed and assigned to a panel by the circuit executive. Cf. Sixth Cir. I.O.P. 34 ("The circuit executive, at the direction of the Chief Judge, makes up the schedule of panels.") I don't know whether the circuit executive assigned the State's "appeal" to the prior panel, but under the rules he should at least have assigned the State's "appeal" to a panel. Obviously, it is likely that the circuit executive would have assigned the second appeal, at Judge Boggs' direction, to the prior panel, but I don't believe such is required under the language of I.O.P. 22(b)(4) (the "must panel" rule cited by several posters above) for the reasons stated above. Assuming that the circuit executive assigned the appeal to a panel, I believe that the panel should have convened together (not in a truncated form, with only two of three judges present), heard the arguments of both sides, reviewed the law carefully, and reached a decision. It is my understanding that Judges Boggs and Ryan did not hear the arguments of Alley's attorneys before ruling, and they apparently did not discuss the case with the third judge on the panel. If I am correct about these facts, then I do not believe that Judges Boggs and Ryan should have decided the State's "appeal." I know that this entire situation was highly rare, but I hope that the Court, as a basic and fundamental proposition, will listen to the arguments of both sides and have all the judges confer together before deciding appeals. These criticisms aside, I am confident that Judges Boggs and Ryan deliberated as they deemed appropriate and decided the case as they saw appropriate.

As the vitriol written by other posters above shows, there's a lot of distrust of judges like Judge Merritt. There's also a lot of distrust of district judges rampant now, particularly in the halls of Congress and the Supreme Court. (Think of "reasonableness review" in the Booker remedy, the calls for an OIG for the Courts, the "second or successive" procedures themselves, etc.) I personally don't think that the Courts of Appeals have the institituional ability to effectively substitute their judgments for the many judgments made by district judges (or circuit judges sitting singly pursuant to Congress' statutory approval) in the cases before them. This increased desire to "reign in the judges" will, I believe, only increase the procedural hurdles in the federal courts, which then provide ammunition for intelligent litigants and undermine our system of justice. So in a perverse way, Congress' efforts to hasten executions have only added to the litigation pipeline. We have to work through the kinks, but Judge Boggs' and Judge Ryan's decision shows a frustration with the statutes written by Congress, and the procedures and issues that arise therefrom, that I believe is not necessary or prudent.

I have been criticised for "mistrusting judges" by several posters above. I hope that my remarks reflect, not a mistrust of judges, but criticism of two particular judges in one situation (which, to give them credit, was rare, under a tight deadline, and late at night). To the contrary, I don't mistrust judges -- as a class or individually. We have a ton of checks in our system on judges (juries, appeals, habeas review, clemency); I am satisfied that our checks on judges are sufficient, as a general proposition. In these posts, I have simply argued for: 1) knowing the statutes and Rules; 2) citing them properly (quotes are a good thing); 3) listening to the arguments of counsel; 4) convening appellate-court panels in full prior to making decisions; 5) following the statutes and rules to the best of one's ability; and 6) TRUSTING YOUR COLLEAGUES. I have no doubt that the process will work out properly if it's just given the chance. Mistrust -- either of individual judges or an entire class of judges -- only hurts the orderly and just mechanism of our law.

Markp
7.20.2006 1:05pm
Former 3d Circuit Clerk (mail):
Mark,

I still don't understand why you think Alley could initiate a 2241 proceeding in the Court of Appeals and obtain a stay of execution, while the state would have to file a notice of appeal in order to get that same court to vacate the stay. My understanding is that, if the Court has jurisdiction to issue a stay, then it has jurisdiction to vacate the stay at the behest of the party aggrieved by it. Am I wrong?
7.20.2006 4:45pm